Monthly Archives: August 2026

Amelioration, Sentencing

Case 000514

Posted on by Gary McCurdy

Error and/or relief

The matter is remanded for the court to consider whether the defendant, serving a Three Strikes life sentence, is entitled to reduction under the Three Strikes Reform Act of 2012 and other ameliorative provisions at a new hearing under section 1172.75.

First Holding:

SB 483, effective on January 1, 2022, added section 1171.1 to the Penal Code, subsequently renumbered as section 1172.75. This section declares that any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense is legally invalid. The Secretary of the Department of Corrections and Rehabilitation and the county correctional administrator of each county are directed to identify individuals in custody and “currently serving a term for a judgment that includes an enhancement described in section 1172.75(a) and provide the information to the court who sentenced the individuals identified. The court is directed to review the judgment, and if it included a sentencing enhancement described in section 1172.75(a), recall the sentence and resentence the defendant.

Authority:

PEN 1172.75

Second Holding:

The Three Strikes Reform Act of 2012 modified the original Three Strikes law of 1994. Under Three Strikes, a third felony of any nature would draw a term of a minimum of 25 years to life if the defendant had previously suffered convictions for two serious felonies (as defined). Under the Reform Act, with certain exceptions, if the current felony is NOT one of the specified serious felony, the sentence would be treated as a two-strike case, in which the sentence would be a doubled determinate sentence rather than a life term.

When a defendant serving a Three Strikes term is resentenced under section 1172.75, the court must modify the Three Strikes term if the triggering third strike was not a serious or violent felony as defined, unless the resentencing would pose an unreasonable risk of danger to the public as that term has been construed in the context of the Reform Act. Pursuant to the full resentencing rule, the court may also exercise its sentencing discretion in light of any changed circumstances.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 850, 878

People v. Buycks (2018) 5 Cal.5th 857, 893

Third Holding:

With respect to sentencing error in particular, the statutory power of appellate courts to disqualify sentencing judges should be used sparingly and only where the interests of justice require it. The interests of justice require it, for example, where a reasonable person might doubt whether the trial judge was impartial, or where the court’s rulings suggest the ‘whimsical disregard’ of a statutory scheme. Erroneous rulings, without more, are not enough to justify the removal of a trial judge from further proceedings in a case.

Authority:

Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 1256

Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 303

Blakemore v. Superior Court (2005) 129 Cal.App.4th 36, 59–60

Abstracts and Minutes, Probation Parole PRCS, Sentencing

Case 000513

Posted on by Gary McCurdy

Error and/or relief

It is improper for a trial court to delegate to a probation officer whether to require a probationer to undergo residential substance abuse treatment.

First Holding:

In resolving whether a clerk’s transcript or the reporter’s transcript controls in the event of a conflict, we do not apply a mechanical rule in favor of the reporter’s transcript but instead consider the circumstances of each particular case to determine which portion of the record because of its origin and nature or otherwise, is entitled to greater credence. F

or reasons we explain below, in this case, we conclude that the clerk’s transcript best reflects the trial court’s intention to delegate to a probation officer whether to require the defendant to attend residential treatment. In this case the clerk’s minutes note that some of the probation conditions are set out in the probation order. Provision number nine of that order provides, “Complete a program of residential treatment and aftercare if directed by the probation officer.” The reporter’s transcript, however, with respect to this condition, states only, “Plead [sic] to any kind of treatment or aftercare if directed by probation.” We must determine which of the two versions reflects the court’s true intention.

Authority:

People v. Smith (1983) 33 Cal.3d 596, 599

Second Holding:

As a general rule, courts will attempt to harmonize the record if a conflict exists. Historically, when a conflict between the court’s oral pronouncement and the written record could not be resolved, the oral pronouncement was given preference However, the modern rule is that if the clerk’s and reporter’s transcripts cannot be reconciled, the part of the record that will prevail is the one that should be given greater credence in the circumstances of the case.

Authority:

People v. Smith (1983) 33 Cal.3d 596, 599

People v. Contreras (2015) 237 Cal.App.4th 868, 880

People v. Pirali (2013) 217 Cal.App.4th 1341, 1346

Third Holding:

With respect to the type of record at issue here, when evaluating a court’s oral pronouncement of probation conditions, a thorough explanation of the conditions is not necessary if the defendant knows what the proposed conditions are. Therefore, the oral pronouncement may be less detailed than the probation order. In this instance, it is clear that the court summarized the conditions of the probation as outlined in the probation order proposed by the probation officer. We conclude that the court intended to adopt the language proposed, to the extent that it did not modify the language (as it did with some proposed conditions. We therefore conclude that the minute order and the probation order are to be given “greater credence” than the oral pronouncement in determining the applicable probation condition under review.

Authority:

People v. Pirali (2013) 217 Cal.App.4th 1341, 1346 [recital of probation conditions in court is unnecessary because conditions are spelled out in detail in the probation order]

People v. Smith (1983) 33 Cal.3d 596, 599

Fourth Holding:

The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by the Constitution. Trial courts have the authority to determine if a defendant is eligible for probation and if so, which conditions would be appropriate under the circumstances. By ordering probation, a court may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens.

Accordingly, a court may require a defendant to complete a residential treatment program, even though it would place a significant burden on a defendant’s liberty interests. A probation officer, on the other hand, has discretion to oversee and enforce the trial court’s orders. The probation officer may not create conditions not expressly authorized by the court.

Authority:

Cal. Const., art. III, sec. 3

PEN 1203

People v. Olguin (2008) 45 Cal.4th 375, 379

People v. Pirali (2013) 217 Cal.App.4th 1341, 1350

People v. Smith (2022) 79 Cal.App.5th 897, 903

People v. O’Neil (2008) 165 Cal.App.4th 1351, 1358

Fifth Holding:

It is an unconstitutional delegation to the probation officer to decide whether the defendant needed to complete residential treatment, as opposed to an outpatient program. Unlike outpatients, participants in residential programs may be confined to the treatment facility for the duration of the program, separated from family and friends, and unable to maintain a job. Given the significant liberty interests at stake, a court—not a probation officer—must make the decision to require a defendant to attend residential treatment.

Authority:

People v. Smith (2022) 79 Cal.App.5th 897, 905

Abstracts and Minutes, Appellate Principles, Effective assistance of counsel, Elements of crime, Standard of review, Sufficiency of and substantial evidence

Case 000512

Posted on by Gary McCurdy

Error and/or relief

Though we find the evidence was sufficient and we affirm the jury trial convictions, there are errors in the indeterminate abstract of judgment insofar as it incorrectly reflects that two section 12022.53(b) personal use enhancements were found true. The jury found only one to be true. Also, the determinate abstract of judgment reflects the incorrect number of custody credits. There were other errors as well, but the matter must be remanded for further clarity on what should be included in the abstract of judgment.

First Holding:

This court’s role in reviewing a challenge to the sufficiency of evidence is limited. When considering a claim of insufficient evidence, we examine the entire record to assess whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Thus, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. Conflicts and even testimony that is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.

We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. A reversal for insufficient evidence is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the jury’s verdict. Additionally, when undertaking such review, our opinion that the evidence could reasonably be reconciled with a finding of innocence or a lesser degree of crime does not warrant a reversal of the judgment.

Authority:

People v. Smith (2005) 37 Cal.4th 733, 738

People v. Zamudio (2008) 43 Cal.4th 327, 357

People v. Hill (1998) 17 Cal. 4th 800, 849

Second Holding:

Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear. The taking element of robbery itself has two necessary elements, gaining possession of the victim’s property and asporting or carrying away the loot. A thing is in the immediate presence of a person, in respect to robbery, which is so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession of it.

Authority:

PEN 211

People v. Cooper (1991) 53 Cal.3d 1158, 1165

People v. Hayes (1990) 52 Cal.3d 577, 626-627

Third Holding:

An act may be robbery even if the property had been taken after the victim died. While it may be true that one cannot rob a person who is already dead when one first arrives on the scene, one can certainly rob a living person by killing that person and then taking his or her property.

Authority:

People v. Navarette (2003) 30 Cal.4th 458, 499

Fourth Holding:

Defendant’s ineffective assistance claim is forfeited for failure to support his argument with analysis and citation to evidence in the appellate record.

Authority:

Rules of Court rule 8.204(a)(1)(B)(C)

People v. Harper (2000) 82 Cal.App.4th 1413, 1419, fn. 4 [an argument is forfeited if it is raised in a perfunctory fashion without any supporting analysis and authority]

Fifth Holding:

[GARY NOTE: The court cited no authority for its order directing correction of the abstract of judgment, likely because the need for correction of material errors is simply obvious. But the court could have cited a number of cases, a few of which I have laid out.]

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

People v. Zackery (2007) 147 Cal.App.4th 380, 385

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Abstracts and Minutes

Case 000511

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment contains several errors and must be corrected.

Holding:

The abstract of judgment mistakenly included a $40 court operations assessment and a $30 conviction assessment, neither of which the court imposed, and it misidentified the defendant’s custody credits to have been awarded pursuant to section 4019 rather than section 2933.1. It also omitted a reference to subdivision (b) when it reflected the enhancement imposed was pursuant to section 12022.53.

Finally, the abstract did not reflect that the $300 fine imposed per section 1202.4 was suspended by the court unless and until parole was revoked. It is firmly established that fines, fees, and other financial assessments cannot be included in an abstract of judgment in a criminal case unless imposed by the court by its oral pronouncement at sentencing. By the same logic, when the court suspends execution of a fine in its oral pronouncement, that fact must be reflected on the abstract as well.

Authority:

People v. Clark (2021) 67 Cal.App.5th 248, 260–261

Abstracts and Minutes, Effective assistance of counsel, Sentencing

Case 000510

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be corrected to reflect the correct sentence to 27 years rather than the 27 years two months as shown, and to reflect that the term imposed for one count is one-third the middle term.

First Holding:

A reviewing court may order correction of an abstract of judgment that does not accurately reflect the oral pronouncement of judgment by the sentencing court.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185

Second Holding:

As a general rule, only claims properly raised and preserved by the parties are reviewable on appeal. Our Supreme Court adopted this forfeiture rule to reduce the number of errors committed in the first instance], and the number of costly appeals brought on that basis. In the context of criminal sentencing, this forfeiture rule applies to claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons.

Authority:

People v. Smith (2001) 24 Cal.4th 849, 852

People v. Scott (1994) 9 Cal.4th 331, 354

People v. Welch (1993) 5 Cal.4th 228, 235

Third Holding:

At resentencing, the defendant did not ask the trial court to strike the prior serious felony enhancements or argue that imposing both the firearm enhancement and the upper term on count 16 would result in an impermissible dual use of facts. The record contains no sentencing brief; and both defense counsel and the defendant himself responded in the negative when the trial court asked if they wished to be heard at the resentencing hearing. To preserve his claims, the defendant was required to object at resentencing. Because he did not do so, his current appellate contentions are forfeited.

Authority:

People v. Scott (1994) 9 Cal.4th 331,353

People v. Coleman (2024) 98 Cal.App.5th 709, 723-725

Fourth Holding:

If the defendant believes that evidence outside the record would support his claim of ineffective assistance of counsel, the proper remedy would be a petition for a writ of habeas corpus.

Authority:

People v. Snow (2003) 30 Cal.4th 43, 111